Chief Justice Warren E. Burger: We’ll hear arguments next in 71-517, Combs against the United States.

Mr. Perry, you may proceed.

Mr. James N. Perry: Mr. Chief Justice and may it please the Court.

We’d like to acknowledge and recognize that Mr. William F. Hopkins would have been here today, but on advice of counsel, he was unable to travel to Washington.

The petitioner was charged with an indictment having to do with receiving, possessing, and concealing goods that were stolen in interstate commerce.

When the matter came on for trial, there was a pretrial motion to suppress.

The argument was basically that the affidavit in the search warrant was defective.

Without the issue of standing having been challenged, the Court overruled the pretrial motion to suppress, the matter went to trial, petitioner was found guilty.

When the matter was appealed to the Sixth Circuit Court of Appeals for the first time, the United States Government raised the issue of standing.

The Sixth Circuit Court of Appeals determined that we did not have standing and they affirmed the trial court.

Now, the argument of the petitioner is relatively straight forward.

We feel there’s a tension between the Fourth and the Fifth Amendment.

We’re relying upon Jones and we’re relying upon Simmons, and we’re saying that if an indictment has as one of its element’s possession, the Government cannot deny to a standing to attack a search warrant.

Now the Government has argued that actually they have two positions.

They’ve argued that Simmons gives the petitioner protection because whatever he says at the pretrial hearing cannot be used against him but the trial in chief.

And they also, have urged the Court to adopt the theory that a thief can have no expectation of privacy with regard to the goods that he stolen, and cannot therefore bring himself within the Fourth Amendment.

Justice Byron R. White: Let’s assume that the thief hides his goods in a checkroom, he just hides it there.

The police said here that he did it and they simply go the checkroom operator and say, we would like to look around here for some goods we think that were stolen.

The checkroom operator says, come on in.

The police go in and they find the good.

Now at that point, is it your position that the police may not seize those goods without a warrant?

Mr. James N. Perry: No, Your Honor.

I’d say they had permission to enter the checkroom by the checkroom girl.

Justice Byron R. White: Well, I know but they didn’t have permission from anybody to take the good and the Fourth Amendment protects those effects.

Mr. James N. Perry: Yes sir.

Justice Byron R. White: That’s your point, isn’t it?

Mr. James N. Perry: Yes, sir.

Justice Byron R. White: Well now, couldn’t it -- the Court could say, well we -- surely you have standing to object in the sense that they’re your goods but they’re has just been no violation of your Fourth Amendment rights because the police may seize stolen goods without violating anybody’s Fourth Amendment right?

Mr. James N. Perry: Yes, sir.

I would say that the thief at least has standing to make that argument, he may lose.

Justice Byron R. White: Well, he loses it.

Mr. James N. Perry: Yes, sir.

Justice William H. Rehnquist: Now, how is your case different from that?

Mr. James N. Perry: In our case, the goods were seized on a farm in Hazard, Kentucky where the goods were stored on the petitioner’s father’s farm.

Chief Justice Warren E. Burger: Was it the relationship that --

Mr. James N. Perry: No, sir.

Chief Justice Warren E. Burger: How is the son different from the checkroom that Mr. Justice White postulated?

Mr. James N. Perry: Well, we feel that to assert that – yes, this liquor did belong to me.

That I did have possession of it, forces him to admit an element of the crime which --

Justice Byron R. White: Of course, he would’ve admit anything if the police got on the -- let’s assume that the police did not violate your client’s Fourth Amendment rights by entering the father’s property.

Mr. James N. Perry: Yes sir.

Justice Byron R. White: Let’s just assume that, and got to the shed, still they hadn’t validated his rights and then they saw the liquor.

Mr. James N. Perry: Oh!

It would appear that we do not have a search, Your Honor.

If they saw it, did they look for it on the farm?

Justice Byron R. White: Oh!

Yes, they saw it in the -- and they’ve search for it and found it, and assuming that there were no violations of the defendant’s Fourth Amendment rights until they seize the liquor.

Until that point at least, there was no violation.

Mr. James N. Perry: Yes, sir.

Justice Byron R. White: Would you say there was any violation in his Fourth Amendment rights in the pack of seizing the liquor?

Mr. James N. Perry: Your Honor, I would say that there are no violations of his rights at that point.

Yes, sir.

Justice Byron R. White: But -- and all that you’re contending for here is you’re not able to make the argument that he ought to be able to have the chance of saying, my rights weren’t violated?

Mr. James N. Perry: Your Honor, we feel that in this particular instance, the search warrant was and I think it’s conceded, it was not an adequate warrant, and we want to attack that.

Justice Byron R. White: Well, I understand that.

Mr. James N. Perry: Yes, sir.

Justice William H. Rehnquist: But all you’re claiming is a basis for attacking the warrant is the claim of possession in the goods, isn’t it?

Not any expectation of privacy in the property owned by the defendant’s father?

Mr. James N. Perry: We had an expectation of privacy and that’s why we concealed on this farm.

The goods were hot, were trying to hide it.

Justice Byron R. White: In this case, were you denied the right to show that you had such an interest in the real property, that the entry onto the property violated your client’s rights.

Mr. James N. Perry: Your Honor, the issue of standing was not discussed at the trial court level.

When we had the pretrial motion to suppress, it was never raised.

In other words, the issue was never discussed.

The only thing that was discussed was the sufficiency of the affidavit.

Justice Byron R. White: Well, so it’s never been tried out as to whether or not if the warrant was no good that your client’s Fourth Amendment rights were violated by entering the property.

Mr. James N. Perry: I believe that’s right.

Yes, Your Honor.

In other words, I’m saying that we feel that if they did not have a valid warrant, they did not have a right to go on this farm and find the liquor.

Justice Byron R. White: Oh!

I know that’s your plan.

Mr. James N. Perry: Yes, sir.

Justice William H. Rehnquist: Supposing the -- supposing your client had planted the liquor on some farm of a complete stranger, would that case from your point of view been a -- different than this one?

Mr. James N. Perry: No, Your Honor.

Our point of view would be that we are entitled to suppress that evidence even though the liquor that we had stolen was secreted on the farm of a stranger.

Chief Justice Warren E. Burger: Suppose he drove out the country with the truck and had a bulldozer, and bulldozed a great, big hole on the ground, buried it and cover it over, and just we don’t know whose land it is?

Mr. James N. Perry: Yes, sir.

Chief Justice Warren E. Burger: Expectation of privacy?

Mr. James N. Perry: Yes sir because in this instance, he hid them, he doesn’t want anybody to find them illustrating his intent to conceal them.

He’s trying to hide them, he does expect privacy and further --

Chief Justice Warren E. Burger: Well, what amendment honors and protects that kind of a claim of privacy, that kind of an expectation?

Mr. James N. Perry: Well, we understand that the Fourth Amendment is a personal right and the --

Mr. James N. Perry: Well, in the -- from the concept of property and ownership, the Court is correct.

But the man did have possession of them and he’s charged with possession as an element of the crime.

Justice William H. Rehnquist: But I thought you’re arguing a minute ago that your principle contention was violation of the expectation of privacy on the farm.

Now, are you also saying that you’re claiming of right in the liquor itself, which was violated by a seizure without an appropriate warrant?

Mr. James N. Perry: Yes, Your Honor, based on the idea that we were charged with possession.

The mere fact that we’re charged with possession forces us to give up something in order to protect ourselves so that we can have this evidence suppressed.

Justice William H. Rehnquist: Well, but the liquor was taken from you before this.

You mean give up something in the sense of a concession related – the merits of a criminal charge?

Mr. James N. Perry: Yes, sir.

Justice Byron R. White: I thought you’ve said that it was complete and appropriate example if the police could seize the stolen merchandise or the contraband without violating your Fourth Amendment right?

Mr. James N. Perry: Your Honor, maybe if I had the opportunity, I take that back.

Justice Byron R. White: Do you think that’s fatal?

Mr. James N. Perry: Your Honor, that question is a difficult imposed question.

I would say that they had an access to the courtroom but with regard to the goods that they took, if they’re charging us with possession of them as an element of our crime, then I think that gives us standing.

If they were --

Justice Byron R. White: Oh!

I think, give you a standing but are you going to win your Fourth Amendment argument or not?

Mr. James N. Perry: In that case, I would say probably not.

Justice Byron R. White: Yes.

Chief Justice Warren E. Burger: Suppose -- so that you’d have standing to lose the issue, to lose the point?

Mr. James N. Perry: Yes, sir.

Now, we have this problem that when we had a motion to suppress, and we are asked to explain how we acquire our rights to suppress these items.

Whatever we say may be used against this is of the trial in chief.

Justice Byron R. White: I thought that Simmons held that if whatever you said could not be used against you at the trial?

Mr. James N. Perry: Yes sir, that’s correct.

Now, we’re tying to determine if it can be used indirectly from the standpoint of impeachment as Harris would suggest or could it be used in this way.

Let’s suppose that we were successful on the motion to suppress and the tangible evidence could not be used.

Now, could the United States Government use other facts that were tainted or with – they were -- their origin was the basis of our testimony on suppression and would we then have in our owned type of question, what was the origin of these facts that they’ve presented?

Was it truly independent or was it from our testimony at the pretrial?

Now, the Government makes the point that if the man is a thief, with regard to the stolen goods, he shouldn’t have standing.

But in order to determine that issue, do we first have to determine that he is a thief, which is really what is supposed to be determined at the trial in chief.

We would say that he is entitled to assert standing without having any determination on a pretrial basis whether he’s a thief or not.

Chief Justice Warren E. Burger: Well, wouldn’t you -- aren’t there some situations in which prior to the determination of the ultimate issue, the known possession of stolen property affords spaces for probable cause for either an arrest or a warrant?

Mr. James N. Perry: Yes, sir.

Chief Justice Warren E. Burger: So that you sometimes do need to make a preliminary and tentative determination before trial?

Mr. James N. Perry: Yes sir, that’s the probable cause determination.

Chief Justice Warren E. Burger: Is there anymore than that involved here, the probable cause to believe that he wasn’t entitled to the possession of this, probably?

Mr. James N. Perry: Well, except to that at the pretrial hearing, he might come on and say, no, I’m not a thief.

And then you’re going to have an issue whether there was probable cause that he was thief or what argue was not, and actually, you’ve got an issue with an issue determination.

Justice Byron R. White: Was this the merchandise was not in tax statement, they’ve put this --?

Mr. James N. Perry: Your Honor, the tax was properly paid, it was legitimate alcohol.

Justice Byron R. White: Was a question of being stolen?

Mr. James N. Perry: Your Honor, I think there was a question of whether it was stolen and who stole it.

As I understand the facts, it was transported in interstate commerce from Ohio to Kentucky.

It was properly taxed at the time it was taken.

I guess basically, what we’re saying, the Court has shown familiarity with our position certainly.

We’re saying the United States Government should not be allowed to benefit from lawlessness that is if they can go out and breakdown a door or with an inadequate warrant, go out and search and find something.

They should not through the limitation of Simmons or through the suggestion of the U.S. Attorney be permitted to use that evidence against us.

We don’t think this Court should sanction lawlessness and law enforcement.

That’s all we have now.

Justice Potter Stewart: As I understand it Mr. Perry, the Government has now conceded that the search warrant in this case was defective, insufficient, is that your understanding?

Mr. James N. Perry: Yes, sir.

Justice Potter Stewart: And also, since the question of standing was not even raised by the Government, the District Court level, you had no opportunity to show your client’s relationship to the premises where the liquor was seized, is that --?

Mr. James N. Perry: That’s correct Your Honor.

Justice Potter Stewart: Am I correct to that?

Mr. James N. Perry: We’d argue for a waiver of that point as a matter of fact, while the U.S. Government, we’re not raising it at a trial court level.

Justice Potter Stewart: It wasn’t raised at all?

Mr. James N. Perry: No, sir.

Justice William H. Rehnquist: Of course the reason that the Government might not had raised that I suppose is that they got a favorable ruling on the validity of the search warrant affidavit.

Mr. James N. Perry: Well, Your Honor, at the time they rested on the arguments at pre – at the pretrial motion to suppress, they did not know if it was going to be favorable or not.

If they were going to, if they were concerned about it you would think that it ends every argument that they had and not reserve one for an after the fact, use as it were.

Justice William H. Rehnquist: You thought as they could’ve attack or sub-supported the validity of the warrant both on the sufficiency of the affidavit on the -- and on the absence of standing, is a too prong part of the same argument.

Mr. James N. Perry: Your Honor as a matter of fact, a little bit more on that point, if the affidavit in the search warrant had been adequate under Aguilar and Spinelli.

The question of standing probably would not have been raised because that affidavit would’ve been included the basis for the informant’s information, which was the transportation of the goods by the petitioner to the farm, the concealing of the goods on the farm.

Justice Potter Stewart: Did the Government concede the insufficiency of the warrant in the -- before the Court of Appeals or --

Mr. James N. Perry: Yes, sir.

Justice Potter Stewart: And raised the question of standing for the first time there?

Mr. James N. Perry: Yes, sir.

Thank you, sir.

Chief Justice Warren E. Burger: Mr. Reynolds.

Argument of William Bradford Reynolds

Mr. William Bradford Reynolds: Mr. Chief Justice and may it please the Court.

This case presents the single issue whether one charged with possession of stolen property should by virtue of that charged alone be accorded automatic standing to challenge a search for or seizure of that property, and in order to put that issue in proper context, let me amplify on the facts provided by Mr. Perry just briefly.

Prior to trial in this case, petitioner moved to suppress the 26 cases of whiskey involved here that were seized by the Kentucky State Police, claming that the underlying affidavit for the search warrant was legally deficient.

The motion was heard by the District Court and denied and at that time the question of standing was not raised or argued by the parties.

The case then proceeded to trial where the government’s evidence reveals the following.

On July 28, 1969, petitioner telephoned one Janet Ballard and asked whether she knew of anyone who wanted to buy some whiskey.

She said, yes.

And later that day, petitioner delivered approximately 40 cases of whiskey to her home in Newport, Kentucky.

The following evening, Mrs. Ballard called petitioner, told him that she had heard the whiskey was stolen and asked the he removed it.

He did so with the help of one James Martin, Mrs. Ballard’s brother, and they stored the whiskey in a basement of the home of petitioner’s estranged wife, which at that time also contained some 30 or 40 additional cases of whiskey.

Later that same week, Martin received the -- a telephone call from petitioner.

He was told that “the heat was on” and that the whiskey had to be moved.

The two men then went to the house, loaded all the cases of whiskey onto a pick-up truck and transported the whiskey some 200 miles to Hazard, Kentucky.

The cases were stored in an old shed on the farm of petitioner’s father.

Thereafter, Martin went to the FBI agents assigned to the area and told him of the stolen whiskey.

The agent gave the information to the Kentucky State Police and they obtained and executed a warrant to search the father’s farm.

Pursuant thereto, the police seized in the shed the 26 cases of whiskey involved here.

Petitioner who is now present at the time was later arrested in his home in Newport, Kentucky.

His defense at trial was based on testimony given by petitioner and members of his family to the effect that the shed had earlier been rented by James Martin and one Charles Chapman.

That it was Martin and Chapman who had stored the whiskey in the shed and the petitioner had not been on or near his father’s farm during the relevant period and had never anything to do with the whiskey in question.

Following his conviction, petitioner appealed to the Sixth Circuit Court of Appeals on the ground that the whiskey had been seized under an invalid search warrant and that the evidence had therefore been improperly admitted.

The Government, recognizing for the first on appeal that the underlying affidavit for the search warrant was legally deficient under Aguilar v. Texas argued only in the Court of Appeals the petitioner lacks standing to raise the Fourth Amendment claim.

Unknown Speaker: Because?

What was your argument there?

Because what?

Mr. William Bradford Reynolds: The argument there was based on the fact that petitioner had no interest in the premises searched or in the property seized, and he was not on the premises nor--

Unknown Speaker: Or they did it -- the argument was deferred?

Mr. William Bradford Reynolds: Well, I believe that that’s the issue in this case, Your Honor.

Unknown Speaker: A what?

Mr. William Bradford Reynolds: Your Honor --

Unknown Speaker: Let’s assume you went on that, that he --

Mr. William Bradford Reynolds: He had no --

Unknown Speaker: That he had no interest in the property – in the real property?

Mr. William Bradford Reynolds: Well then, I believe that there isn’t -- there -- the issue was whether he could assert an interest in the personal property that was seized.

Unknown Speaker: Do you think there’s some doubt about that?

Mr. William Bradford Reynolds: Our position is that he should not be able to assert an expectation of privacy in the seized property because it was stolen property, but that our position that the --

Unknown Speaker: Well, you seem to think there is a -- do you think there really is some substantial question that if the policeman comes upon -- legally, comes upon stolen property, he can’t seize it?

If the -- if it’s evident, I mean if he has reasonable grounds to believe that property is stolen?

Mr. William Bradford Reynolds: Well Your Honor, I believe --

Unknown Speaker: Is that in doubt?

Mr. William Bradford Reynolds: I believe that there may be some question under a prior decision of this Court, Jeffers v. United States, where there was language to the effect that contraband property and we don’t perceive any basis for distinction between contraband and stolen property in this respect -- contraband per se.

There was language which indicated that one might have a proprietary interest in contraband, sufficient to give him a right of privacy in the property seized.

Unknown Speaker: What about historically, regardless of the -- of what the scope of the incident to arrest searches whether it’s very narrow or broad?

When you make an arrest and you seize evidence, just evidence or contraband or stolen property that you find on the person, is there any question that the police may seize that?

Mr. William Bradford Reynolds: No, I think --

Unknown Speaker: And that the reason they may seize it under the Fourth Amendment?

Mr. William Bradford Reynolds: I think that’s correct --

Unknown Speaker: Well, what’s the difference here if the police are legally where they are, why they can’t they seize the property that they recognize as having been stolen or they at least they have reasonable grounds to think that it’s stolen?

Mr. William Bradford Reynolds: Well, that’s the position we take and we believe that they can do that.

Unknown Speaker: Well, except as I understand it, you now concede that they were not legally where they were, that they were there by reason of an invalid insufficient search warrant?

Mr. William Bradford Reynolds: That is correct Your Honor --

Unknown Speaker: And you begin on the premise that they were not legally where they were there.

Mr. William Bradford Reynolds: That’s correct.

Unknown Speaker: And the question is whether or not this person has a standing to raise that illegality?

Mr. William Bradford Reynolds: Well, to object to that.

But I understood.

Unknown Speaker: Yes, but don’t you concede from your -- what you suggest ought to be done to this case that he had -- that he will win this case if he can show he has a sufficient interest in the real property?

Mr. William Bradford Reynolds: I believe that’s correct.

We will --

Unknown Speaker: Of course, but do you conceive standing to claim that there was an invasion of his Fourth Amendment rights by entering the real property?

Mr. William Bradford Reynolds: That’s correct, Your Honor.

I think --

Unknown Speaker: But you would certainly -- but there is a -- do you think you must also show or do anything about the personal property that was seized?

Let’s assume you win on the -- on remand.

Assume this case was remanded and you won and were – and that it was shown that he had no interest in the real property such as to make this entry an invasion of his Fourth Amendment rights.

Mr. William Bradford Reynolds: Right.

Unknown Speaker: Is the case over then or not?

Mr. William Bradford Reynolds: We -- yes.

Well, the question of the suppression is over if he has no interest in the premises.

Unknown Speaker: Yes, he can.

Mr. William Bradford Reynolds: Then he would not have any standing to raise a Fourth Amendment claim.

Unknown Speaker: About the entry to the property?

Mr. William Bradford Reynolds: That’s correct.

Unknown Speaker: Then how about the Fourth Amendment, supposedly protects against seizure of effects?

Mr. William Bradford Reynolds: To the extent that -- well, our position is that if they are not his effects, he has no right to assert a Fourth Amendment claim as to effects that are stolen.

Unknown Speaker: Let’s assume that if -- instead of a whiskey, stolen whiskey, it was heroin, which did belong to him that he had bought and paid for and in that sense they belonged to him -- it belonged to him?

Mr. William Bradford Reynolds: Our position would be the same with respect to heroin.

Unknown Speaker: Well, it doesn’t have to be, does it?

It doesn’t have to be.

You’re talking here about stolen property.

Mr. William Bradford Reynolds: In this case, we’re talking about stolen --

Unknown Speaker: I suggest that although you don’t see a distinction between contraband and stolen goods that there might be one?

There may be in terms of what you argue in your case, in your brief because you are saying it doesn’t belong to him?

Right, exactly.

Mr. William Bradford Reynolds: Alright, I --

Unknown Speaker: How about if you -- what about if you’re legally in a place and you see some evidence of a crime that unquestionably belongs to the defendant?

Mr. William Bradford Reynolds: The evidence unquestionably belongs to the sense --

Unknown Speaker: Let’s assume you’re searching a house with the consent of the owner?

Mr. William Bradford Reynolds: I think that the defendant would then have a right of privacy in the effect that unquestionably belonged to him which would --

Unknown Speaker: You mean that, you couldn’t seize it if there was a -- if it was evidence of a crime?

Mr. William Bradford Reynolds: I -- the question, I believe is whether he would have standing to object to the seizure, I believe we could seize.

Unknown Speaker: But could he win?

Mr. William Bradford Reynolds: That turns on whether it was a reasonable or unreasonable seizure and I believe that draws into question whether it was plain view or whether it’s in the permissible scope of the search at the time, and questions of that nature.

But as to standing, our position would be that he would have standing to object to the seizure because it was an effect that did belong to him.

Chief Justice Warren E. Burger: But as I understood --

Mr. William Bradford Reynolds: Resolution to that --

Chief Justice Warren E. Burger: -- with Mr. Justice White’s question, maybe I got a different thrust from what you did.

I understood him to pose to you a case where the owner of the establishment had consented to the entry and the search, and then an officer went in and saw the shotguns, hand grenades, machine guns on their face, something he could observe.

Now, is that the way you understood this question?

Mr. William Bradford Reynolds: Well, I believe that on those facts that he would have standing.

Chief Justice Warren E. Burger: Standing to complain before the material was admitted in evidence.

But would there be any question about its admissibility?

Mr. William Bradford Reynolds: Oh!

I -- no, I think that the admissibility, it would clearly -- he would not be in a position to suppress the evidence.

But I believe that that’s a different question as to whether -- then the question whether he has standing.

Justice William H. Rehnquist: Well, standing in connection with personal property, really is his kind of almost total logic or secure.

Isn’t it as standing in connection with real property and expectation of privacy in premises may -- makes good sense but standing in connection with personal property, it seems to be from the questions as it boils down to almost six and one half, it doesn’t (Voice Overlap) --

Mr. William Bradford Reynolds: Well, I think there is an overlap and it’s interrelated but I believe that there -- it could be that a person has standing to object to a seizure of what is lawfully his personal effects, and yet, because the seizure is reasonable, not be able to suppress that.

Justice William H. Rehnquist: Whereas if the personal effects where something stolen by him we wouldn’t even have standing to object although the seizure might be unreasonable?

Mr. William Bradford Reynolds: That’s our position, yes.

Unknown Speaker: Because they were not his personal effects, they belong to somebody else, that’s your basic position.

Mr. William Bradford Reynolds: That’s correct, Your Honor.

That’s our position.

Unknown Speaker: Because as I say again as I understand your position here, at least, you conceded that this was an unreasonable search.

Mr. William Bradford Reynolds: Now, the problem that the -- the reason we have such a problem with respect to standing is because of the decision of this Court in Jones v. United States where it was held that one who is charged with a possessory crime, in this case possession of stolen property automatically has standing to contest or challenge the search and seizure.

And we believe that the dual rational of the Jones decision has been undermined significantly by the subsequent decision in this Court in Simmons.

And that it should be reexamined by this Court and to the extent that it would confer automatic standing in one charged with a possessory crime of stolen property it should be abandoned.

The reason given, one of the reasons given by the Court to sustain the automatic standing rule, it’s -- was essentially that the defendant in order to establish standing to suppress evidence might well have virtually to admit his guilt of the possessory offense charged.

And his virtual admission could then at that time, be used against him at the trial.

In this prospect or dilemma as it were referred to in Jones was viewed by the Court as a deterrent on some defendants who would otherwise have come forward to vindicate their Fourth Amendment claims.

And was thus considered, the Court said to weaken the efficacy of the exclusionary rule as a sanction from unlawful police behavior.

No longer, however does there seem to be a real prospect of later direct use at trial of testimony given earlier in support of a suppression motion.

In Simmons v. United States at 390 U.S. decided several years after Jones, this Court held the testimony given by a defendant in support of his motion to suppress under the Fourth Amendment may not thereafter be admitted against him at trial on the issue of guilt unless he makes no objection and this use restriction rule of Simmons essentially removes the dilemma that was confronting defendants at the time that Jones was deciding and then thereby eliminates one of the two reasons given by the Court in Jones for fashioning an automatic standing rule.

As to the other reason which was that the Government would have the benefit of the -- the rule of the automatic standing rule was fashioned so the Government would not have the benefit of contradictory positions as a basis for conviction.

That’s also undermined by Simmons cause that rational was based on the argument that if a defendant was sufficiently deterred from asserting his Fourth Amendment right, so that he remain silent, choosing not to acknowledge any interest in the premises search to the property seized.

But the Government would then have the advantage of a position on a question of the admissibility of evidence that was seemingly inconsistent with its proof of lawful possession at trial.

However, now that the fact that it was deterred, defendants from moving to suppress has been removed by Simmons, the used restriction rule of Simmons.

It seems unlikely that defendants will choose to forego pressing their Fourth Amendment claims.

Perhaps even more to the point, if one is charged -- who is charged with possession moves to suppress on grounds of illegal search or seizure, we do not believe that the Government is required as we understand the fundamental inquiry for purposes of standing under the Fourth Amendment to maintain a position inconsistent with or contradictory to its position at trial.

In this case, petitioner’s conviction flows from proof of his knowing possession of the stolen whiskey before and at the time of the search.

If the admissibility into evidence of the fruits of that search, on the ground the petitioner lacks standing is perfectly consistent we think, but the theory that petitioner have constructed possession of the whiskey at all relevant times.

His standing depends upon some showing of an intrusion of privacy of his own person, his own house, his own papers or his own effects, or an intrusion on premises in which he personally had a legitimate expectation of privacy.

In the absence of such a showing, the evidence is admissible without regard to whether petitioner might claim which he never has done in this case that he possessed the stolen whiskey.

It would thus be no need for the Government to dispute such a claim on a motion to suppress.

In sum, we do not believe that he had the fundamental purpose of the Fourth Amendment to protect individual privacy, or the dual rational of Jones v. United States when read in light of this Court’s subsequent decision in Simmons.

Warrants and application of auto -- of the automatic standing rule to one charge with lawless possession on the sole basis for its Fourth Amendment claim is the seizure of stolen property in which he has no legitimate proprietary interest and with respect to which he can have no reasonable expectation of privacy.

Justice William H. Rehnquist: Mr. Reynolds, what’s your argument in response to Mr. Perry’s contention that the Government should have raised the lack of standing point as well as the sufficiency of the search warrant on the suppression proceedings in the District Court?

Mr. William Bradford Reynolds: Your Honor, I don’t believe I have an answer as to why they did not raise a standing point.

The government failed to raise it.

It raised it for the first time in the Court of Appeals.

No objection was made by petitioner at that time.

Justice William H. Rehnquist: Was it argued -- the standing point argued orally in the Court of Appeals or in the briefs at any rate?

Mr. William Bradford Reynolds: It was argued in the briefs and it was argued on petition for rehearing.

The Court of Appeals decided the question on the standing issue alone and at no time in the Court of Appeals was an objection made to the fact that the standing issue had not been raised in the District Court.

When the court came here -- when the case came here on petition for certiorari, there was no objection to that -- to the fact that it had not been raised below.

The petition was addressed itself solely to the point that we’re discussing here going to the standing.

In the merits brief, there was also no objection raised on that point, on petitioner’s merits brief.

Again, addressing himself solely to the standing question.

Now in Jones, v. United States, the same one we’ve been discussing at 362, this Court had a similar situation before it and said that the question was properly before it in the circumstances and if they could decide the issue.

Justice Potter Stewart: I think you’re the -- pragmatically, you perhaps -- your answer to my Brother Rehnquist’s question is that you concede at least in your brief that even if you prevail wholly in this case, it should re -- be remanded to the District Court.

Mr. William Bradford Reynolds: I was going to – I was about to mention, yes, Your Honor.

Justice Potter Stewart: With directions to that Court to canvas the question of what this petitioner’s interest was in the premises that were searched.

Mr. William Bradford Reynolds: That’s correct, I believe that the case, if we or we prevail, we believe the case should be remanded to the District Court for an opportunity to determine the interest whether it was a sufficient interest in the premises search.

Unknown Speaker: Well, what if you -- if prevail like -- it gets that perhaps if the other side if -- it does happens while the other side is prevailing in sense that the judgment below is going to be vacated?

Mr. William Bradford Reynolds: I believe that’s correct Your Honor.

The --

Unknown Speaker: In the petition.

Mr. William Bradford Reynolds: And he is the petitioner.

If our argument is accepted --

Unknown Speaker: Do you ask -- you asked if the judgment below be reversed, in looking at page 42 of your brief.

Mr. William Bradford Reynolds: That’s correct Your Honor.

Unknown Speaker: Vacated that reversed.

Mr. William Bradford Reynolds: I believe that if the case is remanded for the purposes of a hearing, it would have to reversed and vacated.

Unknown Speaker: Because there was never any opportunity for such an investigation in the District Court.

Mr. William Bradford Reynolds: That’s --

Unknown Speaker: We’re going to have a factual examination of the --

Mr. William Bradford Reynolds: The fact finder has never yet heard the stand.

Unknown Speaker: And I take that the father convicted with --

Mr. William Bradford Reynolds: The father was convicted and did not have the appropriate --

Unknown Speaker: The brother was not convicted?

Mr. William Bradford Reynolds: The brother was not convicted.

Unknown Speaker: In a separate trial?

Mr. William Bradford Reynolds: In the same time trial, Your Honor.

Unknown Speaker: In the same trial, was it -- was there conspiracy alleged?

Mr. William Bradford Reynolds: No, there was no conspiracy alleged.

Justice William H. Rehnquist: Is there any –

Mr. William Bradford Reynolds: It was a joint trial, there was no --

Justice William H. Rehnquist: Would there -- is there any precedent for a limited remand in the case like this for an evidentiary in this particular point without a reversal of the entire judgment of conviction?

Mr. William Bradford Reynolds: I believe there could be a remand before the -- to hear on the evidence on the suppression hearing without -- before doing that -- vacating the judgment.

Unknown Speaker: Kind of a Shotwell (ph) technique.

Is that what your position here?

Mr. William Bradford Reynolds: Yes, Your Honor, that would be --

Unknown Speaker: (Inaudible)

Mr. William Bradford Reynolds: No!

No, just the --

Unknown Speaker: I take the judgment with what you vacate?

Mr. William Bradford Reynolds: The Court of Appeals judgment.

Unknown Speaker: Should be reversed, that’s what you say on page 42.

Mr. William Bradford Reynolds: The Court of Appeals but –

Unknown Speaker: Yes.

And what does -- and what has that -- and what does that do to the judgment of the District Court?

Mr. William Bradford Reynolds: Well, we think that the judgment of the District Court could remain in effect until such time as you had the hearing.

Chief Justice Warren E. Burger: Until you’ve determined the very narrow question that you suggest to remand on.

Mr. William Bradford Reynolds: On the suppression.

Unknown Speaker: What we’re talking about I gather is --

Shotwell.

You sent it back and as the District Court finds that there’s no merit, no standing but then he reinstates the judgment of conviction without warrant, isn’t that it?

Mr. William Bradford Reynolds: That’s correct Your Honor.

Unknown Speaker: Well, that’s Shotwell or it’s been done in –

Unknown Speaker: (Inaudible)

Unknown Speaker: It’s been done in all the line up cases in such.

Mr. William Bradford Reynolds: Right.

Unknown Speaker: Are we indulging in semantics in the difference between the reversal and vacation of the judgment?

It sounds to me as we might be?

Mr. William Bradford Reynolds: Well, I --

Unknown Speaker: When you asked for a reversal.

I wonder whether you really mean a vacation.

Mr. William Bradford Reynolds: Yes, perhaps vacation might have been a better choice of word.

Unknown Speaker: Mr. Reynolds, may I come back to a point you’ve touched on that I’m not entirely clear about. Would it be necessary in this case for the Government to allege possession?

Would not -- there have been a crime committed if the Government had alleged that the whiskey was stolen and transported in interstate commerce?

Mr. William Bradford Reynolds: Well he is -- in this case the defendant was charged with receiving, possessing and concealing tax paid whiskey that have been stolen from an interstate shipment knowing it to be stolen.

Justice Lewis F. Powell: Suppose you had a case where a man who was charged with stealing it and transporting it in interstate commerce.

He had no reason to be sure that he had it in his possession at the time.

Does that make any difference?

I take it your position is the possession itself even constructive, that it makes no difference?

Mr. William Bradford Reynolds: That’s correct Your Honor.

We don’t believe that the element of possession should have a bearing on the question of the Fourth Amendment question.

Justice Lewis F. Powell: With respect to stolen goods?

Mr. William Bradford Reynolds: With respect to stolen goods.

Unknown Speaker: But you do state as I understand it and I wondered, I have the same question in my mind as that expressed by Mr. Justice Powell apparently.

You do state that possession is an element of the offense to be proved.

Mr. William Bradford Reynolds: At the trial.

Unknown Speaker: At the least under this indictment?

Mr. William Bradford Reynolds: Yes it is, it is an element of the offense --

Unknown Speaker: Not just --

Mr. William Bradford Reynolds: Under this indictment.

Unknown Speaker: Not just the theft or the concealment causing it to be concealed.

He has to have himself possession, actual and constructive to be guilty under this indictment.

Mr. William Bradford Reynolds: To be guilty under this indictment.

Unknown Speaker: Right.

Mr. William Bradford Reynolds: That’s correct.

Is that, yes sir.

Chief Justice Warren E. Burger: Very well.

Mr. Perry, do you have anything further --

Rebuttal of James N. Perry

Mr. James N. Perry: Nothing further, Your Honor.

Unknown Speaker: Could I ask him a question Mr. Chief Justice?

Chief Justice Warren E. Burger: -- Mr. Reynolds?

Unknown Speaker: Let’s assume that all that comes of this case, neither -- I have no idea what will come out of this but the -- isn’t the -- that judgment below is either reserved to vacated and it is ordered that there would be a new hearing, would you have any right to object to this evidence on the ground that you have interest in the real property, if you did?

Mr. James N. Perry: Yes, sir.

Unknown Speaker: And then that you would get a new trial if you have established sufficient interest in the premises to make this entry illegal as to your client?

Mr. James N. Perry: Yes, sir.

Unknown Speaker: Pending that hearing, what would be your thought that the judgment of conviction be temporarily set aside and then reinstated if you lose in the hearing, or would you prefer that the hearing go forward without vacating the conviction and if you win, however, at the hearing, the conviction would be vacated that you have in the trial.

It maybe or maybe two or three months, I don’t know how long it would take but which would you think would be --?